If the case rests on her facial expressions, there is no good case either way. The only reason to insist on her removing her niqab is to shut her up.

So, her family members who may very well have repeatedly sexual assaulted her while she was a child are being empowered by the state to force her to take her clothes off in public, in order for her to testify against them.

Sounds legit! /sarcasm

The fact that this case has come up surrounding sexual assault just makes the issue even more apparent – more clear.

It reminds me of the niqab bans in France that have the effect of putting women who wear the niqab under house arrest – and would have police accosting women in the streets for wearing a banned article of clothing.

How can anyone justify disallowing women wearing niqab to take their exams? Are their instructors so dense they can’t identify them? As a teacher, I find this ridiculous. So, apparently if your sect doesn’t stop you from getting an education, the “liberals” will!

I’m no fan of the niqab. It seem about as practical an article of clothing as high heels or sleeves that cover your hands or cinching corsetry. I understand that there is a good argument to disallow it in some places (such as banks) and not allow the picture of a person wearing a veil to act as identification, and to request that a person remove the niqab if identification is ACTUALLY an issue – as is practically necessary.

However, what level of cruelty is too much? You can’t empower others by using force and coercion against them – and you certainly can’t do that by empowering the people who are actively oppressing them. Why the hell should her “personal preference and matter of comfort” be of no consequence? How messed up is that? – especially considering the nature of the case.

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13 thoughts on “Want to testify against your rapist? Sorry, you’re going to have to take your clothes off.”

“The only reason to insist on her removing her niqab is to shut her up.” No. Right to a fair trial is highly prized. When there is potential jail (and a lot of it) on the line, then that’s a right that has to be protected. And it’s axiomatic in criminal courts in Canada (and in the U.S. I’m sure) that demeanour is as important as what is said to be able to make determinations of credibility.

I had a trial recently where the complainant was obviously hostile to me and to my questions in her expressions. (An especially important point, as she claimed she was never aggressive or hostile with the accused.) It was that reason, more than her actual responses, that the judge (a female judge) felt she couldn’t rely on her evidence. If she was wearing a veil, would the judge have seen the same indicators that suggested she wasn’t being truthful? And if she hadn’t seen those indicators, my client may have been convicted and sent to jail for a long time.

“If she was wearing a veil, would the judge have seen the same indicators that suggested she wasn’t being truthful?”

Yes. A veil – even a complete one – does not make expression impossible.

How do you think putting someone in a situation where they are extremely uncomfortable is going to affect how she speaks and responds?

The interest of the state to avoid making testifying in court nearly intolerable for a distinct minority, who already face pervasive discrimination, far out-weighs any vague non-measurable amount of added intuition of a persons character (most of which is accessible by tone of voice, word choice, expression in the eyes, and body language) gained by forcing them to reveal a part of their body that they are uncomfortable revealing.

Have you ever had a person wearing a burqa with niqab give you a dirty look? I have – after my son said, “BOO – Scary” because he thought she was wearing a Halloween costume. As someone who sees people wearing a niqab almost daily, the idea that you can’t get non-verbal cues from someone wearing it seems bizarre to me.

There is a better argument for realizing that, since this case is in a Western country where wearing niqab is considered essentially deviant and associated in peoples minds with extremism – that any person wearing a niqab is going to have a disadvantage in court due to ingrained stereotypes.

The idea that wearing a niqab is going to give her this unfair advantage does not seem like a reasonable argument to me.

However, requiring her to take it off will, absolutely, disadvantage her.

The Court’s assumption is that we must have a clear ability to see her to judge reaction.

Your assumption is that you can just as easily determine reaction and credibility without it. That it’s a ‘vague intuition’.

The Court commented that they had a bunch of opinions and articles about how people THOUGHT that demeanour could or couldn’t be judged, but no one in the lower courts ever produced a witness to testify to that. So the court used their default.

A few other points: “how will they respond to being very uncomfortable” – the same way everyone else who testifies does. There’s very few people who are comfortable in that position, especially people complaining of violent crime. Judges are used to people who don’t want to be there. It’s part of their considerations.

“A veil does not make expression impossible” No, it doesn’t. But it makes it more difficult.

Here’s the thing: I’m completely ok with the niqab. As much as I understand the arguments against it (representative of oppression of women, particularly), it’s still a personal choice, and I do my best to respect personal religious and philosophical choices, as it harms none.

The only time I’d argue to infringe such is when it’s necessary – for identification, and for this situation. This argument slams right into the right to a fair trial – and that’s the MOST IMPORTANT of legal rights. Not even that the accused has a right to face their accusers – that’s just a turn of phrase. But when you’re dealing with issues of credibility, (and those are the toughest to judge) anything that takes away the ability of the judge to determine credibility flies in the face of fundamental justice.

You’re talking about a core freedom that’s being infringed. Your very starting assumption: “testifying against your rapist” – the courts can’t start at that point in their analysis. They start at the point that this person is innocent, that they must be convinced that the accused is guilty. And, unfortunately, sometimes the person making the accusation will be lying. Or will be wrong. And only a good cross-examination will reveal that.

The requirement, or even the FEAR of the requirement to take off your niqab in order to testify spits in the face of a fair trial for the person who is accustomed to wearing niqab.

I am not making the assumption that the specific woman in this specific trial is telling the truth. I am making the assumption that someone, at some point, who wears niqab either as custom or religious practice WILL at some point be raped and have to deal with, not only the cultural shaming of rape victims, the difficulty of being a survivor of rape, and the stress of going to court and dealing with the justice system – but on top of ALL that – may be required to take off her niqab in public and possible in front of her own damn rapist – EVEN when doing so is not material to the case but is deemed necessary to make sure she’s not a liar.

That’s sick.

I understand that you believe that seeing someone’s face may make judging their credibility easier – however, if that is of such serious concern, I worry that your prisons in Canada are full of bad actors and ugly people.

Even if seeing a person’s face does, indeed, give judges and juries essential reliable justification for their conclusions concerning credibility – which I have frankly seen no evidence of; that concern (as stated in the opinion) needs to be balanced with the rights of the person who wears niqab.

You act as though wearing niqab is just a personal preference like wearing pigtails or a stocking cap; and for some women it is. However, putting the burden on a woman who wears niqab to justify that choice to a court; when she may very well believe that GOD HIMSELF compels her to wear it – does not seem like a reasonable burden to impose upon her.

I would love to see a study showing whether or not covering the nose of mouth of a person actually makes it more difficult to judge their sincerity; but barring that – it is unreasonable to not only assume that the effect is there, but assume it is significant enough to trump the right of religious expression for an embattled minority.

The dissenting opinion includes the possibility of requiring that the niqab is taken off if revealing the face of the person is relevant to the case.

Until someone shows me that someone’s nose and mouth are lie detectors – I don’t see the point of making women that wear niqab anxious that a judge will decide that it is necessary for her to take it off in order to be able to fully take part in legal proceedings, even when their face is not necessary as evidence.

You commented that the accuser is entitled to a fair trial. But she’s not the one on trial. The person facing (possibly) multiple years in jail is the one on trial. THATS the reason this is so important. The Supreme Court will almost always err on the side of preserving trial fairness above everything else, and that’s about preserving the rights of the accused foremost. Because the consequences of not doing so are so dire when they get the result wrong.

I’m not disputing that the majority of complainants are honest complainants. But, as the saying goes, better 10 guilty people go free than one innocent is convicted. The judicial process is an ugly one where victims are frequently disbelieved, belittled, re-victimized, and embarrased. However, when you’re talking about taking away the rights of the accused, taking away their freedom, what other system works?

We’re sliding into the whole issue of victims rights vs. accused’s rights. I try to be reasonable about my stance on these things (and I’ll happily argue your side when someone’s dismissive of the complainant), but the system is designed to protect the accused from the power of the state, to protect the accused from the stigma of accusation, and to protect the accused from losing freedom, livelihood, and stature without proof _beyond a reasonable doubt_. And that’s a very high standard.

[And I’m trying to speak in gender-neutral terms, because in theory the decision is gender-neutral – it should apply to men as much as women. Of course, that isn’t true because there’s no equivalent garments for men. It will disproportionately affect women. But I don’t know how you deal with that while still respecting the central tenets. Men or women, accused by men or women, should always have the same rights to ‘face their accusers’, to believe that their case will be adjudicated fairly. If you make a different set of rules for one group of accusers, on any basis, it strikes to the heart of the fairness of the system.]

On the issue of whether or not the mouth and nose are important to determining truth-telling – I’d say that seeing someone’s expression, their whole face is important. Show me evidence that’s wrong. That’s the system we’ve had for years. Many of the judges on the Supreme Court (not all, some are academics), have sat in courtrooms and had to make those judgments. They know for themselves what visual tics they look for. If someone’s going to say it ought to be changed, that’s fine — but it’s up to them to produce the evidence to convince the court to change it. The Court + Legislature _have_ changed the law when evidence has shown better processes (e.g. a number of provisions limiting or eliminating questioning on past sexual history, rules protecting child witnesses.)

I’ve thought about being a judge in these cases, and what steps I could take to protect the privacy of the witness. I can think of ways, and hope that you’re right that judges will generally say “No, it’s okay”. But I also think of that case that I mentioned at the start – and how the judge twigged to her expressions, and how important that was in her opinion.

The other thought, cold comfort it may be, is that when a judge says, yes, I believe the complainant and convict the accused, they might very well sentence even more harshly for the accused doubly re-victimizing the complainant, not only making her go through trial but also making her take of the nijab.

So, if the person wearing the niqab was the one being accused, then that person has more rights to wear their veil?

Isn’t this opinion a general opinion for niqab being wore during court cases?

I do not see the important concept of guilty until proven innocent – somehow resulting in an atmosphere where the most basic of human rights is not extended to witnesses.

If it has – to the point where the certainty of re-victimizing Muslim women who wear the niqab and are raped is nearly inconsequential to the passing and non-established possibility that seeing the nose and mouth of a woman who is lying will affect the judge or jury’s conclusion as to her credibility – I think your profession needs to get some perspective.

How about you are either convinced by her testimony or you are not – and it is not up to you if she wears a niqab – and just like any other article of clothing it is not your business if she takes her clothes off and shows you her body unless doing so necessary as evidence.

The burden of establishing necessity should be on the state, in order to compel someone to do anything in order to participate in legal processes – especially very personal choices such as religious clothing.

Maybe if the person is convicted they will get a more severe sentence for making the woman take off her veil in public? If you think of it as a crime, perhaps the state should not be the one doing it. Perhaps they should serve a longer sentence for demanding such a thing without establishing compelling interest.

No, the case is purely regarding her as a witness in a criminal proceeding. She, apparently, is the key (only?) witness.

If she was the accused, then the question would become how would it affect her right to a fair trial – if she wanted to testify in her own defence. That’s an interesting question – she risks the judge not giving her evidence weight if she refused to take it off, i suppose. But they wouldn’t compel her to do so.

You’re referring to the wearing of this garment as a basic human right, but that right (right to religious freedom, and to pursue it as she wishes) generally does not trump the rule of law. On the extreme alternate example, guy doesn’t get to cane his wife just because the Bible said so (someone tried to argue that one recently. It was summarily dismissed, and he was sent for psych assessment). And the rule of law requires a vigorous defence for all accused persons.

And yes, the passing possibility of a defence requires that people are re-victimized. Guy I briefly represented just had his trial. Four different assault complainants, DNA evidence, witness identification evidence, children, rape victim, mother picks him out of surveillance, corroborating witnesses hear the victim’s screams, and he’s got a history of similar offences. Every single one of those complainants had to come to court to testify because he wasn’t prepared to plead guilty, despite damning evidence.

Why? Because everybody deserves a defence, that the court find them guilty beyond a reasonable doubt.

“That’s an interesting question – she risks the judge not giving her evidence weight if she refused to take it off, i suppose. But they wouldn’t compel her to do so.”

Right, and the same should go for testifying against someone else. If those making decisions about her credibility feel less certain of her credibility because she is wearing niqab – that can only give an advantage to the defense when the burden of proof is on the prosecution.

What is not reasonable is saying that she cannot give testimony at all if she does not take it off – because that has the affect of completely DISALLOWING very specific individuals from testifying at all.

And what sort of precedent does this set if a judge decides that a women who wears a niqab should be compelled to testify? Would she be in contempt of court for refusing to take it off in order to give her testimony?

I get that religious expression is not an absolute right. In fact, I realize that there really are few (and arguably NO) inalienable rights. If the state shows a compelling interest – they can pretty much do anything.

If there is a compelling reason, the state can do a cavity search on me, for example.

In this case there is a compelling interest for the state NOT to require someone to take off the niqab to testify as the practical effect of such a ruling…

…would practically make it legal to rape women who wear niqab….

…because there would be very very few avenues to prosecute the offenders.

And still – all I’m hearing is that possibly, maybe, it might be somehow easier to spot a liar if there nose and mouth are not covered.

Holy crap are those priorities messed up.

And seriously, to you think that in a Western country especially, a woman wearing niqab is going to be considered more credible at the get-go than a woman who does not?

There is every reason to believe that she would be at a disadvantage for wearing it, as far as how she is perceived.

And as I said – any UNCERTAINTY about her credibility is an advantage for the defense.

So, I’m left to believe (without any evidence to the contrary) that the defense in this case is bringing the issue forward to SHUT HER UP. If she doesn’t testify, the prosecution has no case.

You might as well announce happy hunting – as now women who wear niqab do not have the same legal protections as others.

What if a western woman were to bring a handkerchief with her while she testifies to dry tears from her eyes? The cloth covers her face through most of her testimony as she sobs. Perhaps she should be compelled to put it down so the judge and jury can stare at her nose-mouth area as a means to ascertain her credibility? Should hipsters have to cut their bangs? Should they all have to wear a form-fitting tank top so you can see if they are breathing hard or not? Heck what if she has bandages?

Interestingly, I caught a clip of the witness’ lawyer on the radio. With the proviso that this was a few second clip as part of a news bite, apparently she’s happy with the ‘balanced and fair’ approach of the Court.

I’m surprised at that, since this seems to be a case where the Court is saying that she *should* remove the niqab – unless she already knows that the trial judge won’t make her do it

The majority opinion doesn’t seem to be an opinion at all, but a discussion of how a judge should make the decision on a case-by-case basis. I think it is an unwarranted concern that a person is going to wear niqab for no good reason but to hide their lying face. I strongly feel that essentially NOT answering the question, but throwing it back to individual judges is not strong enough to protect the rights of those who may have psychological difficulty with not wearing the niqab in public, as putting the decision in the individual judges hands does not adequately “consider broader societal harms, such as discouraging niqab-wearing women from reporting offenses and participating in the justice system.”

I strongly side with the dissenting opinion. “The harmful effects of requiring a witness to remove her niqab, with the result that she will likely not testify, bring charges in the first place, or, if she is the accused, be unable to testify in her own defence, is a significantly more harmful consequence than the accused not being able to see a witness’s whole face. Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab.”

The majority decision is: these are the principles a judge has to apply when making this decision. Which is what a Supreme Court arguably should do – guide lower courts in how to decide these things. Not make new rules (though that’s a completely other discussion, and the Court’s certainly put their foot down on other occassions.)

It’s a good dissent, by a smart person. But I got eight really smart people who disagree with it.

I guess I’m just not happy with any decision that is going to have the effect of disadvantaging only women and only people that are part of a religious minority.

If there is a strong practical case for doing such a thing – I’ll hear it. However, I don’t see it here.

I feel as though if the guidelines are followed that the majority opinion put forth, that every reasonable judge would make decisions concerning this that are in-line with the dissenting opinion.

Not making a clearer, stronger line – is just going to have the effect of intimidating an often oppressed group within an often oppressed group, from fully participating and having the tools to defend and protect themselves.

All that – for the vague notion that people can magically tell if someone is lying by looking at their nose and mouth.

I don’t buy it.

I know you have more experience with this than I do – as far as working in the courts. However, as someone who has lived in areas with relatively large Muslim populations within the U.S.; I just can’t imagine making such a demand unless there is a damn good, clear reason.